Sexual Misconduct Allegations in The CAF

[QV]

Was an investigation being conducted to determine if offences may have been committed under the National Defense Act Code of Service Discipline? Crim Code obstruction doesn’t have to rely on a criminal predicate offence. You can go Crim Code obstruction for someone giving you a fake name at a traffic stop. The elements of the offence of obstruction allow for numerous different fact sets.

Clearly there was at least enough information available for someone to feel comfortable laying a charge and for crown to b going with it. Might be we need to wait to see how this plays out.

I'm with you on what can constitute obstruct. So what was obstructed exactly in this case? Agree, we'll need to wait and see what details emerge but on it's face this seems weak as hell.

Where I'm at a loss is where the CDS's conduct contravened a NDA disciplinary offence that would necessitate an investigation.

He had a personal relationship, for years. Clearly the CAF allows relationships or there would not be such a thing as "service couples". There is even a DAOD on the topic and this circumstance doesn't seem to even meet the definition of "adverse personal relationship".

I've never ever heard of anyone in the CAF being under investigation for disciplinary offences stemming from a consensual relationship. Once it was determined there was no sex assault, IMHO this was over. But let's see what happens I guess.

 

[SupersonicMax]

I'm with you on what can constitute obstruct. So what was obstructed exactly in this case? Agree, we'll need to wait and see what details emerge but on it's face this seems weak as hell.

Where I'm at a loss is where the CDS's conduct contravened a NDA disciplinary offence that would necessitate an investigation.

He had a personal relationship, for years. Clearly the CAF allows relationships or there would not be such a thing as "service couples". There is even a DAOD on the topic and this circumstance doesn't seem to even meet the definition of "adverse personal relationship".

I've never ever heard of anyone in the CAF being under investigation for disciplinary offences stemming from a consensual relationship. Once it was determined there was no sex assault, IMHO this was over. But let's see what happens I guess.

The victim mentioned the Mr Vance used his authority to influence her postings. That could warrant an investigation.

 

[Blackadder1916]

I've never ever heard of anyone in the CAF being under investigation for disciplinary offences stemming from a consensual relationship. . . .

Well, there was that general officer (later colonel) who engaged in a consensual sexual relationship with a junior rank but strayed contrary to other regulations and orders, and obstructed justice (by telling the junior rank to deny the affair). Almost on point.

Ménard J.B.D. (Brigadier-General), R. v. - Chief Military Judge

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Ménard J.B.D. (Brigadier-General), R. v.​

Charges
•Charges 1,2: S. 129 NDA, conduct to the prejudice of good order and discipline.

Results
•FINDINGS: Charges 1, 2: Guilty.
•SENTENCE: A reduction in rank to the rank of colonel and a fine in the amount of $7000.

The objective seriousness of the two offences. You have been found guilty of two service offences under section 129 of the National Defence Act for having taken part in activities of a sexual nature with a person at the rank of master corporal, contrary to the JTF Afghanistan Theatre Standing Orders, and for having obstructed the inquiries into the facts regarding the proper performance of your duties as commander. You are therefore liable to dismissal with disgrace from Her Majesty’s service or less punishment.

And a search of CM decisions using the word "obstruction" brings up numerous examples of individuals charged with obstruction.

Chief Military Judge

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[Haggis]

Well, there was that general officer (later colonel) who engaged in a consensual sexual relationship with a junior rank but strayed contrary to other regulations and orders, and obstructed justice (by telling the junior rank to deny the affair). Almost on point.

Ménard J.B.D. (Brigadier-General), R. v. - Chief Military Judge

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decisia.jmc-cmj.forces.gc.ca

That was Ménard's second trip before a Court Martial for an "ND". The other occurred roughly a year earlier with his carbine.

 

[daftandbarmy]

That was Ménard's second trip before a Court Martial for an "ND". The other occurred roughly a year earlier with his carbine.

 

[Good2Golf]

I think they’re classified as BNDs…biological negligent discharges.

 

[McG]

The victim mentioned the Mr Vance used his authority to influence her postings. That could warrant an investigation.

She did say that but she was also PRes and not subject to postings, so there is more behind that allegation than what is being said.
It might be that he used CFTPO to drag her across the country (which is no better), that he circumvented proper PRes hiring processes (which might actually be worse), or something else all together.

 

[QV]

Well, there was that general officer (later colonel) who engaged in a consensual sexual relationship with a junior rank but strayed contrary to other regulations and orders, and obstructed justice (by telling the junior rank to deny the affair). Almost on point.

Ménard J.B.D. (Brigadier-General), R. v. - Chief Military Judge

Get quick, easy access to all Government of Canada services and information.

decisia.jmc-cmj.forces.gc.ca

And a search of CM decisions using the word "obstruction" brings up numerous examples of individuals charged with obstruction.

Chief Military Judge

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decisia.jmc-cmj.forces.gc.ca

Not the same.

Menard's activities were contrary to theatre standing orders. Breaking a standing order would constitute an offence under NDA 129. And by his actions Menard may have obstructed that legitimate investigation. Moreover, Menard's activities would negatively affect (or prejudice) good order and discipline of his subordinates in theatre if his tryst was widely known. The boss is breaking the rules.

As for Vance, what standing orders exist in Canada preventing relationships between CAF members? And if none exist how could he obstruct an investigation into that which does not exist? If an investigation is illegitimate, can it be obstructed? I understand any lawful investigation could be obstructed even if the investigative outcome bears no fruit. What I'm contending is, once sex assault was ruled out, the disciplinary investigation itself was illegitimate because (from what I understand) he broke no rules by merely engaging in a consensual relationship.

There has to be something else more to the Vance case, because if that is all there is to it... that is weak.

 

[daftandbarmy]

She did say that but she was also PRes and not subject to postings, so there is more behind that allegation than what is being said.
It might be that he used CFTPO to drag her across the country (which is no better), that he circumvented proper PRes hiring processes (which might actually be worse), or something else all together.

An interesting metaphor for what the Reg F does to the Reserves, in microcosm

 

[lenaitch]

I'm not familiar with NDA or military jurisprudence, but I would think that so long as the investigation was entered into in good faith and not outside the authority of the investigators, a subject party in the investigation trying to influence the evidence of another involved party seems, to me, the fit the offence of Obstruction. Somebody (the female witness in question?) raised an allegation of improper behavior. Investigators have three choices; dismiss it out of hand, pass it on or investigate it.

 

[winds_13]

QV, there are a lot more rules that Vance potentially broke outside of sexual assault. Yes, consensual relationships are allowed in the CAF but they must be reported to the CoC, particularly when one is subordinate to the other. Vance signed her PER, that alone was a conflict of interest if they were engaged in a consensual relationship. He is accused of under evaluating her potential on said PER, in order to maintain control over her. As mentioned, he potentially abused his authority to post her under his command. He may have ordered her to his office where she alleges they engaged in sexual acts. She stated that she felt powerless to deny his requests due to the power that he had over her career. He may have provided her direct advice on what information to include and not to include in her class action lawsuit claim, stating that he ensured it was designed so that offenders did not have to be named. When being investigated for these offences, he then directly told her to lie. He lied publicly that their physical relationship had ended at a point in time prior to when he apparently fathered children with her. Just because the relationship started consensually does not mean that he did not commit sexual misconduct. Having sex in the office alone, or signing her PER when they are involved in an intimate relationship, would be worthy of investigation and charge, if true.

There is a lot more to this case than a simple consensual relationship between two members of the CAF. I recommend you watch the Global News interviews with Maj Brennan where she describes their relationship.

 

[MilEME09]

Over 40 per cent of military sexual misconduct class action claims are from men: Eyre - National | Globalnews.ca

Gen. Wayne Eyre said fixing the military's culture is vital because the world is "probably more dangerous now than it has been since the end of the Cold War."

globalnews.ca

New interview reveals class action lawsuit has reaching 19000 claims, 42% of which are filed by men.

 

[kev994]

Does anyone have any idea what % of the CAF is men? I’m guessing it’s pretty high.

 

[dimsum]

Does anyone have any idea what % of the CAF is men? I’m guessing it’s pretty high.

I can't remember where and when I saw it, but I thought women made up about 15% of the CAF as a whole.

Probably very dated info but I can't see it being that different now...?

 

[dangerboy]

I can't remember where and when I saw it, but I thought women made up about 15% of the CAF as a whole.

Probably very dated info but I can't see it being that different now...?

From the 2019-2020 Department of National Defence departmental progress report for Canada’s National Action Plan on Women, Peace and Security: 2019-2020 Department of National Defence departmental progress report for Canada’s National Action Plan on Women, Peace and Security

 

[kev994]

So 58% of 19000 claims is ~11,020 claims from women. And if 15.7% of 60,000 reg force is women, that’s only 9,420. Understanding that my sample size is off, there’s more people than just reg force in the pool, it seems like most of them have made a claim. That’s kinda hidden in the story about the number of claims that are from men.

 

[dangerboy]

The 15.7% of women in the CAF are those that are currently in. I suspect a lot of the claims submitted are from people that are no longer serving in the CAF.

 

[FJAG]

Rory Fowler's blog of the 25th or 26th of November respecting the circumstances of the investigation and removal of Admiral MacDonald.

Admiral McDonald and Procedural Fairness in the Canadian Forces

Admiral McDonald and Procedural Fairness in the Canadian Forces [Editorial Comment: Regular readers of this Blog will be aware that the content of this Blog typically relates to legislation, policies, processes, and practices pertaining to the Canadian Forces and their application to the...

roryfowlerlaw.com

 

[dapaterson]

I admire the chutzpah of a lawyer taking on a client that they previously pilloried for contempt of the law, arguing that "not charged means didn't commit the acts alleged".

 

[Kilted]

Over 40 per cent of military sexual misconduct class action claims are from men: Eyre - National | Globalnews.ca

Gen. Wayne Eyre said fixing the military's culture is vital because the world is "probably more dangerous now than it has been since the end of the Cold War."

globalnews.ca

New interview reveals class action lawsuit has reaching 19000 claims, 42% of which are filed by men.

That's not surprising, there are likely many that didn't. I suspect that had this occurred 10-20 years ago that not nearly as many men would have come forward because the organizational (warrior?) culture at the time would not have allowed it.